IMPORTANT POINT
Quantum of compensation can be reduced where incident took place due to contributory negligence of both parties.

J. M. Malik, Presiding Member—The report of the Surveyor towers above the rest unless it is shown that his action is mala fide or stems out of an ulterior motive.

2. M/s Western Tobacco Limited, the complainant-company transacts the business of manufacture of cigarettes and deals in export of cigarettes and cut tobacco. The complainant obtained two insurance policies from M/s United India Insurance Company Ltd., opposite party. Unfortunately, the fire broke out at the factory of the complainant during the night falling between 28-29th August, 2003 causing extensive damage to the raw material, building, plant and machinery. The police and the OP were apprised of the facts immediately.

3. The Branch Manager of the insurance company/OP 2 appointed Shri Amit Rupal, Surveyor and loss assessor for the ascertainment of the loss sustained by the fire. The said surveyor visited the site on 29.8.2003 when the fire was still on. According to the complainant, it sustained loss to the tune of Rs.2,72,02,341.840/- concerning raw material, Rs.1,03,87,399.50 towards imported raw material total being Rs.3,75,89,741.430/-. The complainant also sustained loss of Rs. 30 lakh on account of loss of building, plant, machinery and electrical installation. He sustained total loss in the sum of Rs.4,05,89,741.430. The complainant submitted the claim before the insurance company/OP. He also annexed certificate issued by the Municipal Corporation, Bhopal, Ex. A-7; true copy of the certificate of Chief Municipal Officer, Nagar Panchayat, Obedullahganj, annexure A-8(a) and certificate of Office of Chief Engineer Electrical Safety as Annexure A-8(b), showing the cause of fire as short circuit.

4. However, another Surveyor, Shri Pradeep Jariwala of one M/s Mehta & Padamsey Pvt. Ltd. was also appointed without there being any need for such appointment. The second Surveyor visited the factory in a number of times for inspection. Since the complainant was facing a financial crunch, therefore, the complainant sent a letter to the Surveyor requesting him to release part payment/on account of payment of some money till the final decision was taken because the surveyor always assured him that the claim of the complainant would be settled soon. Copies of those letters were placed on record as Annexure A-9 (Colly). M/s Mehta & Padamsey agreed that the complainant had sustained loss to the tune of approximately Rs. 4 crore and offered the complainant a settlement amount of Rs.3,16,00,745/-. The complainant sent letters to the Surveyor on 12.12.2003, a copy of which was placed on record as Annexure A-10 and letter dated 15.12.2003 annexure A-11. However, negotiations could not materialize.

5. There was further correspondence between the complainant and the surveyor and the complainant had agreed to accept an amount of Rs.3,16,00,745/- vide letter dated 28.11.2003 (annexure 14) and dated 12.12.2003 (annexure A-15). However, on 19.1.2004, the complainant was informed that Surveyor was directed to re-investigate the matter. The complainant cooperated with the Surveyor and there were further correspondence.

6. The complainant received a letter of repudiation of 8.10.2004 i.e. after almost a year and 2 months of the date of cause of loss, its true copy has been produced on record as annexure A-18. The complainant has picked up a conflict with this repudiation letter. Ultimately, this complaint was filed in this Commission on 6.4.2005. The break-up of the claim made by the complainant is mentioned as hereunder :

Particulars Amount in Rs.

1. Compensation towards the loss sustained 4,05,89,741.43

2. Interest on the said amount of Insurance @ 12 from the date of fire/loss till the date of realisation

3. Punitive damages 2,00,000.00

Total 4,07,89,741.43

DEFENCE

7. The OP listed the following defences. According to the complainant, the cause of fire was short circuit. It has placed reliance on various certificates. It wants this Commission to presume that there was short circu